In defendant Union Barge Line's motion for summary judgment, it stated that the only issue to be decided is:

"When an unmanned chemical barge has been turned over to a boat yard for the purpose of having its tanks stripped of old cargo, cold water washed, and pumped clean, and the boat yard sends its employees into the tanks without protection or precautions, are the resulting injuries to those employees attributable to unseaworthiness?"

We are of the opinion that this question could be answered in the affirmative. The question of whether or not a vessel is unseaworthy is a question for the jury. Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347, 353 (4th Cir. 1968).

The defendant also asserts that the plaintiffs' employer violated the Health and Safety regulations, and therefore, the defendant should be exonerated. This contention is without merit. Evidence of Safety Regulations and the breach of them by the independent contractor can be introduced to show that the ship was unseaworthy, and if the unseaworthiness was the proximate cause of the injuries, the owner of the ship would be liable. Provenza v. American Export Lines, Inc., 324 F.2d 660, 665 (4th Cir. 1963), cert. denied, 376 U.S. 952, 84 S. Ct. 970, 11 L. Ed. 2d 971 (1964).

It appears that there are genuine issues of material facts, inter alia, (1) whether or not the barge was unseaworthy, (2) whether or not regulations were violated, and if so, (3) whether or not that violation in whole or in part rendered the barge unseaworthy. Since the movant has failed to sustain its burden of demonstrating that there is no genuine issue of material fact, the summary judgment will be denied. Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3d Cir. 1951).

An appropriate order will be entered.

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